California Ballot Measure Will Likely Ban Anonymous Speech If You Were Arrested For Urinating In Public

from the that's-not-constitutional dept

Here in California, of course, we have a number of (often excessively confusing) ballot measures every election season, and this year is no exception. I've spent a fair amount of time going through the various ballot measures myself in determining how I'd vote on them, and it quickly becomes clear that -- as with so much in government -- the devil is in the details, and the details are often hidden or purposely shoved aside. Take, for example, ballot measure 35. The "summary" version of it sounds like something that many would support:

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

Human trafficking is certainly a big concern. However, there are a lot of details here. That "disclose Internet activities and identities" part is already a concern. And, many of us have heard the horror stories of how states put all sorts of people on "sex offenders" lists for things that aren't sex offenses -- things like urinating in public or (perhaps slightly more controversial) two teenagers engaging in consensual sexual activity.

It turns out that the internet stuff in this bill is massively problematic. Unfortunately, some "voter guides" completely ignore the issue. A popular California voting guide from KCET barely mentions the internet part of the measure, and positions it as something of a no-brainer to support. But, if you look at the details, they're pretty scary:

Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used. There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior. For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.

It punches most of the usual emotional buttons, appealing to voters' sympathy for victims and disgust with perpetrators who are the closest thing the United States has to modern-day slavers. And in calling for longer sentences, it follows the same assumptions as other tough-on-crime initiatives born in fear or anger rather than thought: Punish people more severely and they will offend less. Merely by being on the ballot, the measure implies that the Legislature would not or could not deal with the issue.

That's false. Lawmakers became convinced in 2005 that state and federal laws dealing with kidnapping, extortion and other crimes were not keeping up with human trafficking, and they adopted a law that was painstakingly crafted with input from law enforcement, victims, advocates and others. That law has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged. Proposition 35 would subvert that work and substitute a web of poorly drafted laws that expand the sex offender registry, divert resources from victims and, most important, could not be adjusted to keep up with changing circumstances without yet another ballot measure.

The ACLU has stepped up and tried to remind people that it's likely unconstitutional in that it removes the right to speak anonymously over issues completely unrelated to any crime:

The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.

Unfortunately, because this is an emotional issue, it's likely going to pass, and then there's going to be a huge mess as it's put into practice, followed almost certainly by lawsuits challenging the constitutionality of the provision. Emotionally driven issues tend to make bad law, and it seems like this is no exception.

Reader Comments

General Rule on CA Props = No

I have been preaching for decades that if a CA Proposition was put on the ballot by anyone other than the legislature, it was by someone with the money to do it, who has an agenda, that is certainly in their best interest, and almost certainly not in the interests of the public. Unless you read every word in the statue itself and understand it and think it through, vote No. Let the folks you elected to make laws make laws, not huge private interests with the kinds of cash proportionate to their willingness to misrepresent.

We've seem it played out again and again. And bad laws passed as often. (Cue the auto insurance prop this time, put on the ballot by Mercury Insurance -- the company whose credo is apparently "every claim is a lie." Think they are trying to help the public?)

This prop was no exception. I didn't even get to the Internet part, as I could find no reason for it to exist in the first play. Now, Yikes!

It's also worth mentioning that this prop broadens definitions of human trafficking and sexual offenses even more, opening up even greater potential to put innocent people behind bars and on lifetime sex offender lists. This would make an an already very bad situation in our judicial system even worse.

Democratic America

One wonders though - say this measure passed and it became law - how would the police know if someone on the Sex Offenders Register had X accounts on Y sites, bar the person telling the police truthfully? Are they going to bug his computer?

Re:

No. Like many other sweeping laws, law enforcement will just wait until they decide someone on the watch list "needs arrestin'", then dig for evidence until they find something the person forgot to report and arrest them for that. It makes that arrestin' thing so much easier to do. No need mucking about with finding real crimes... we'll just define, say, joining an online science fiction fan club without reporting it as a felony. Very neat and tidy.

While this looks like a really bad ballot measure, the real push should be to differentiate "dangerous sex offenders not behind bars" who might legitimately bear closer scrutiny from all the other crap that gets lumped into the "sex offender" category.

Sex offenders

I have read (don't have the citation handy) that the largest group of people being put on the sex offender registry is young males between the ages of 14-16. We are criminalizing our children.

Also, there is now no statute of limitations on child sex abuse, which ought to bring up a suitably huge can of worms. So we really need to start asking politicians when they started being sexually active. This should modify the classic answer, "But I didn't inhale." to , "Age 15, but we didn't kiss!"

Re: Sex offenders

Yeah that's pretty fucked up and thinking back to when I became sexually active I had hardly even hit puberty. I hit it a lot younger than the rest of my class lol. Now while this was going on I never learned about STDs and had no clue what a sex crime even meant. Tagging these kids as sex offenders is completely fucked up then to top it off they get to be watched the rest of their life.

There are far worse things to worry about than a few kids exploring their newly found urges delivered by puberty with each other. Just to list the most obvious. How about looking at the people that are actually raping people.

Another example. I'm a "rape baby" yeah fucked up I know. My old man was in his mid 30's and my mom was 15. He was in prison before I was born for unrelated charges. (A spree of bank robberies and to top it off his parents that I don't know are loaded which makes me think WTF even more.) This is the type person I think should be looked at.

They need to stop ruining the lives of teenagers that are going to fuck around sooner or later and go after the real sex offenders.

I have not had the pleasure of reading California Propositions since I moved from there to Florida. This article is a stroll down memory lane, reinforcing once more in my mind why the state is experiencing serious financial difficulties. Please bear in mind this comment is not directed to the Proposition noted above, which I do agree is quite dubious, but to the general tenor of those propositions where people seem to advance that the way for California to get out of its fiscal woes is to simply take more money out of the pockets of people who are already cashed strapped. Perhaps Utopia can be achieved in the state if those receiving income from any source to simply assign all their rights to "cash" those checks to Sacramento, at which time the state can use the resulting funds to divvy up collections as it deems appropriate. Of course, woe to the person(s) who fall(s) short of meeting the "appropriate" standard. There is a reason so many have left the state, and it seems to me that the mindset reflected in these propositions only serve to encourge emmigration. I happen to agree with the first comment here. These propositions are in large measure end arounds the legislative process, and without the benefit of a legislative history as to which the courts almost invariably refer in attempting to understand and apply the state law. It looks as if California continues to have two legislatures, that which is elected and that which is not.

Re:

Approved with an 80 friggin percent vote. Now human trafficking is *more illegaler*, fines are increased to the point where no one convicted will have the money to pay them, and the state has to make a sex offender username registry to hold every sex offender's Facebook, Techdirt, and Amazon usernames and spam hole e-mail accounts.

All this for a currently existing crime under which there are currently 18 individuals serving time in all of California, according to the government's own analysis. Not 18,000 or even 1800. 18.

I expected this one to pass overwhelmingly, and it did, despite the major human rights issues it raises. As always with these "INCREASE THE PENALTIES!!" proposals, no one EVER asks whether the current penalties are already high enough, or even asks what the current penalties ARE, and anyone who suggests that increasing the penalties isn't needed or wise is accused of being (or even assumed to be) a criminal. Few people dared to speak against this proposal. Is it any wonder it passed? One can only hope that eventually it will be struck down in the courts.